Cass R. Sunstein: Wisdom wins on affirmative action

CAMBRIDGE, Mass.In this week’s affirmative action case, Fisher v. University of Texas, the most important thing to know may be the U.S. Supreme Court’s vote: 7 to 1. With the exception of Justice Ruth...

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Cass R. Sunstein
Posted Jun. 27, 2013 @ 12:01 am

CAMBRIDGE, Mass.

In this week’s affirmative action case, Fisher v. University of Texas, the most important thing to know may be the U.S. Supreme Court’s vote: 7 to 1. With the exception of Justice Ruth Bader Ginsburg, every member of the court joined Justice Anthony Kennedy’s majority opinion. (Justice Elena Kagan recused herself.)

Affirmative action has long divided the justices as well as the nation, and the remarkable near-unanimity of the court speaks volumes. In a little-noticed speech in 2006, Chief Justice John Roberts argued in favor of unanimous decisions from the court, suggesting that unanimity leads to modest, incremental and minimalist rulings: The “broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”

The basic idea is that if a diverse group of justices is able to agree on an opinion, that opinion is more likely to steer clear of intense controversy and avoid the largest theoretical disputes.

This, in the chief justice’s view, is entirely desirable, as he explained with an aphoristic summary of the minimalist position in constitutional law: “If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.” He added that the “rule of law is strengthened when there is greater coherence and agreement about what the law is.”

For 35 years, the law governing affirmative action at public universities has been relatively settled. In Regents of the University of California v. Bakke, decided in 1978, Justice Lewis Powell cast the decisive vote. He concluded that the Constitution doesn’t impose a flat ban on affirmative-action programs but that universities must avoid quota systems, and that they are permitted to consider race as a “factor” only if they can demonstrate that doing so is necessary to achieve the educational benefits that come from a diverse student body.

In 2003, a sharply divided court essentially endorsed Powell’s reasoning. The court’s majority held that the Constitution allows flexible, quota-free affirmative-action programs, but also that judges must apply “strict scrutiny” to assess whether such programs are both necessary and narrowly tailored to achieve a compelling educational goal.

This approach rejects two more extreme positions. Some people, including Justices Antonin Scalia and Clarence Thomas, believe the Constitution calls for colorblindness. They insist that under the Equal Protection Clause, the general rule is that no public institution may consider the race of a student or applicant.

Others, including Justice Thurgood Marshall, have argued that the Equal Protection Clause was designed above all to eliminate a system of racial subordination. In their view, the idea of colorblindness is not part of the Constitution, and judges should uphold affirmative-action programs unless they are genuinely unreasonable.

In Fisher, many hoped — or feared — that a majority of the court would take the opportunity to insist on colorblindness. Instead, the court’s brief, technical, narrow opinion reaffirms the constitutional status quo.

The central thrust of the opinion is that the federal appeals court that ruled in favor of the Texas program had failed to undertake the careful inquiry required by the Supreme Court’s precedents. The court of appeals wrongly said that it would defer to a university’s “educational judgment” that diversity “is essential to its educational mission.” Kennedy responded that “it is for courts, not the university administrators,” to decide whether its use of race is necessary and narrowly tailored “to achieve the educational benefits of diversity.”

The fact that the university was acting in good faith (as emphasized by the court of appeals) wasn’t enough. Federal judges must give “close analysis to the evidence of how the process works in practice.” Thus, the Supreme Court remanded the case to the appeals court so that it could assess whether the university’s affirmative-action program was, in fact, narrowly tailored.

Scalia and Thomas wrote separately to reiterate their view that the Constitution always forbids consideration of race. But for now, what is most important is that both of them were willing to join Kennedy.

The court’s ruling is emphatically minimalist in the sense that it breaks no theoretical ground and declines to make novel pronouncements about the nature of the Constitution’s equality principle. Its simple message is that lower courts must apply the principles that the Supreme Court has already established. With that message, it leaves those principles undisturbed.

The court’s modest, cautious ruling keeps faith with decades of constitutional law — and declines to destabilize the background against which countless educational institutions, both large and small, have been doing their work.

Cass R. Sunstein is a professor at Harvard Law School and a columnist for Bloomberg View. He is President Obama’s former administrator of the White House Office of Information and Regulatory Affairs.